A thousand or more federal contractor and subcontractor establishments will receive audit scheduling letters in the next few weeks because they have been picked for a compliance review by the government—and it is not too late to make sure affirmative action plans are ready for close scrutiny.

As part of a statistical analysis for an affirmative action program for minorities and females, contractors must estimate external availability in order to determine utilization and annual placement goals. Contractors are required to “use the most current and discrete statistical information available,” which includes census data from local job services and data from colleges and training institutions, in their external availability analyses. So how do you find the appropriate availability data for a reasonable recruitment area and a particular job title?

According to an update on the website of the Office of Federal Contract Compliance Programs (OFCCP), there has been a shift in some “key personnel.” According to the changes, Ondray T. Harris will be the new OFCCP director. Harris was previously a senior adviser at the U.S. Department of Labor’s (DOL) Employment and Training Administration and the director of the Department of Justice from 2007 to 2010.

The U.S. Department of Labor has quietly identified a new Director of the Office of Federal Contract Compliance Programs. An industry news outlet is reporting DOL has confirmed Ondray T. Harris will be the new head of the agency. A new update to OFCCP’s website lists him as the Director of the Agency. Interim Director Tom Dowd is listed as the Deputy Director.

We understand that the Trump administration has chosen Craig E. Leen to serve as senior adviser to U.S. Secretary of Labor Alexander Acosta. Leen, who until recently was the city attorney for Coral Gables, Florida, is anticipated to be the next director of the Office of Federal Contract Compliance Programs (OFCCP).

In an unexpected, but much awaited move, it is anticipated Craig Leen will be named as the new head of the Office of Federal Contract Compliance Programs (“OFCCP”). While the Department of Labor has not formally confirmed or commented on this development, Leen’s appointment would come more than a year after Patricia Shiu departed the position in November 2016. Since that time, Tom Dowd has held the position of interim Director at OFCCP.

In a recent letter responding to an inquiry regarding the proposed merger between OFCCP and EEOC, Acting OFCCP Director Tom Dowd detailed the regulatory requirements to undertake a merger, which would take effect in 2019. He also suggested interim alternatives exist to achieve the efficiencies intended by the merger, implying the proposed merger is unlikely to occur.

We have learned the Office of Information Regulatory Affairs (OIRA) has decided to postpone indefinitely effectiveness of the newly created pay data reporting component of the annual EEO-1 report. In a letter addressed to Acting EEOC Chair, Victoria Lipnic, OIRA explained it has stayed the effectiveness of the new obligation to take time to review data collection requirements and burden estimates associated with the new data reporting obligations.

Following up on Interim Director Tom Dowd’s recent commitment for more agency transparency and communication, OFCCP has announced three upcoming town hall meetings. In its announcement, OFCCP stated the purpose of the town halls were to obtain contractor views and learn about contractor experiences implementing and managing nondiscrimination and equal employment opportunity requirements to allow OFCCP “”to enhance the scope and quality of [its]compliance assistance through contractor outreach and education materials.”

The Trump Administration is preparing to focus on affirmative action in college admissions, according to The New York Times, which reportedly obtained an internal announcement to the Department of Justice (DOJ) Civil Rights Division (CRD).

On July 14, 2017, an administrative law judge issued a 43-page set of recommendations and order (“Order”) on the Office of Federal Contract Compliance Programs’ (“OFCCP”) data requests issued to Google, significantly winnowing much of the OFCCP’s voluminous requests. While the OFCCP may appeal the ALJ’s Order, it represents a significant victory against unreasonably intrusive data requests by the OFCCP, while providing a good roadmap for when and how to push back against such data requests. Importantly, the Order has nothing to do with the merits of the OFCCP's audit, which is ongoing.

Doing business with the United States federal government can be very lucrative, but it comes with a price. That price arrives in the form of reporting obligations, recordkeeping, outreach, and much more. Failure to comply with all applicable regulatory requirements can also have steep consequences, so it is very important for federal contractors to ensure they are doing all that is required.

In February 2017, we speculated whether the Trump Administration would eliminate the OFCCP as a possible cost-cutting measure. The discussion has continued since that time, and has, in the past weeks gathered more interest.

On March 27, 2017, President Trump signed a joint resolution of disapproval (H.J. Res. 37) to block the rule implementing Executive Order 13,673, Fair Pay and Safe Workplaces, otherwise known as the "blacklisting" rule. The resolution narrowly cleared the Senate on March 6 in a 49-48 vote, a month after the House similarly approved its passage. The order and its implementing regulations would have required federal contractors to disclose adverse findings and decisions related to their compliance with federal and state labor and employment laws, and empowered federal agencies to deny contracts to employers deemed to lack a satisfactory record of integrity and business ethics based on such disclosures. The order also included pay disclosure requirements and a prohibition on pre-dispute arbitration agreements.

Federal government contractors are now required to provide annual privacy training for employees who (1) have access to a system of records,1 (2) handle personally identifiable information (PII),2 or (3) design, develop, maintain or operate a system of records (“covered employees”). Effective January 19, 2017, the Federal Acquisition Regulatory Council adopted this new rule, adding Subpart 24.3 (Privacy Training) to the Federal Acquisition Regulation (FAR) and a new standard contract clause (FAR 52.224-3) implementing the new requirements. The rule requires that covered employees are trained on compliance requirements pertaining to handling and safeguarding PII.

On March 6, 2017, on a narrow straight party line vote of 49–48, the U.S. Senate passed a Congressional Review Act (CRA) Joint Resolution of Disapproval, which moots Executive Order (EO) 13673, "Fair Pay and Safe Workplaces"—also referred to as government contractor "blacklisting"— and which revoked its implementing regulations and Labor Department guidance. The U.S. House of Representatives passed the joint resolution, H.J. Res. 37 on February 2, 2017. The next step is to send the Joint Resolution of Disapproval to the president for signature.

The Office of Federal Contract Compliance Programs (OFCCP) recently updated the pay transparency provision that employers covered by Executive Order (EO) 11246, “Equal Employment Opportunity,” must post and include in their employee manuals and handbooks. The Pay Transparency Nondiscrimination Provision gives notice to applicants and employees that employers will not discriminate for inquiring about, discussing, or disclosing their pay or, under certain circumstances, the pay of other employees. The revised provision adds the regulatory citation—41 C.F.R. 60-1.35(c)—to the end of the notice.

Pursuant to President Obama’s pay transparency executive order (Executive Order 13665), which amended Executive Order 11246, federal contractors must incorporate the OFCCP-prescribed Pay Transparency Nondiscrimination Provision (PTNP) in employee handbooks (or implement a stand-alone policy) and post it for applicants and employees.

It has come to our attention that OFCCP has sent out Courtesy Scheduling Announcement Letters providing contractors with advance notice of upcoming OFCCP audits. Signed by interim Director Tom Dowd, dated February 17, 2017 and addressed generically to Human Resources Director, the letters provide warning that the establishment listed has been selected for an impending OFCCP compliance review.

On February 17, 2017, the Office of Federal Contract Compliance Programs (OFCCP) mailed Corporate Scheduling Announcement Letters (CSAL) to federal contractors and subcontractors. The purpose of these letters is to give service and supply contractors advance notice that their company may be selected for an OFCCP compliance review.

Federal government contractors must comply with new privacy training procedures as a result of a final rule issued by the U.S. Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). As of January 19, 2017, federal contractors are required to meet training obligations to address the protection of privacy in accordance with the Privacy Act of 1974 and the handling and safeguarding of personally identifiable information (PII). The new rule added Subpart 24.3 (Privacy Training) to the Federal Acquisition Regulation (FAR) and a new standard contract clause (FAR 52.224-3) implementing the new requirements. Here are five frequently asked questions on the new privacy training requirement.

With the transition to a new presidential administration well under way, everyone is looking for signs to help predict the future. Given President Trump’s sweeping executive action, including entering an Executive Order requiring the identification of two regulations to be eliminated for every new regulation proposed, the question of whether the make-up of the federal agencies as we know it will survive a new administration and cabinet.

Federal contractors subject to Section 503 of the Rehabilitation Act of 1973 are required to invite applicants for employment and new hires to identify themselves as individuals with disabilities. Covered contractors are also required to periodically survey current employees regarding their status as individuals with disabilities.

Effective immediately, federal contractors will need to comply with privacy training rules intended to ensure that their workforces protect personally identifiable information. As of January 19, 2017, federal contractors will need to follow a five-step plan to comply with the new rules issued by the Department of Defense, General Services Administration, and National Aeronautics and Space Administration.

Effective immediately, federal contractors will need to comply with privacy training rules intended to ensure that their workforces protect personally identifiable information. As of January 19, 2017, federal contractors will need to follow a five-step plan to comply with the new rules issued by the Department of Defense, General Services Administration, and National Aeronautics and Space Administration.

On December 16, 2016, the United States launched a National Action Plan (the “U.S. NAP”) on Responsible Business Conduct. The U.S. NAP seeks to operationalize the government’s role in encouraging responsible business conduct through a combination of “laws, regulations, policies, programs, and initiatives,” as envisioned under the “soft law” norms of the United Nations Guiding Principles on Business and Human Rights (the “UN Guiding Principles”) and the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises (the “OECD Guidelines”).1 While the U.S. NAP does not introduce any new legislation, it does seek to introduce new initiatives that will hold employers – especially federal contractors – more accountable for their responsible business conduct practices in their operations overseas. Whether these initiatives will be continued under the incoming Trump administration is unclear.

The new paycheck transparency requirements under the “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673) will be effective beginning January 1, 2017. The requirements will apply to all new federal procurement contracts and subcontracts of $500,000 or more. Covered contractors must fulfill four obligations, below, which will be triggered by inclusion of Federal Acquisition Regulation (FAR) clause 52.222-60 — Paycheck Transparency in covered solicitations and contracts.

As anticipated, the first lawsuit challenging the legality of the Fair Pay & Safe Workplaces executive order and final rules is now on the books. Filed by the Associated Builders and Contractors, a construction trade group, and the National Association of Security Companies, the complaint contains six counts which allege the Obama administration, the FAR Council and the U.S. Department of Labor exceeded their authority as well as violated the due process clause and federal arbitration act with issuance of the executive order and implementing rules .

The final regulations for Executive Order 13706 (“Paid Sick Leave for Workers on Federal Contracts”) were published September 30, 2016. Under the Executive Order and final regulations, paid sick leave obligations will begin with new solicitations and contracts beginning January 1, 2017.

Portions of the “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673), often referred to as the “Blacklisting” or “Bad Actors” Executive Order, will take effect on October 25, 2016, and federal contractor employers are preparing for compliance with its reporting, disclosure, and paycheck transparency requirements. Federal contractors with existing arbitration agreements and those contemplating new ones are grappling with the E.O.’s mandate relating to pre-dispute arbitration provisions, which will become effective on October 25, 2016.

It rolls around each year: back to school, Labor Day, football season and the September 30th deadline for government reporting. While next year may bring changes given the proposed EEO-1 pay report, the filing obligations remained unchanged for this year.

The U.S. Labor Department has published the 2017 wage-rate floor required by President Obama's "Establishing A Minimum Wage for Contractors" Executive Order 13658. The Order was implemented through regulations appearing at 29 C.F.R. Part 10. Both the Order and 29 C.F.R. § 10.5 call for USDOL to conduct annual re-determinations of that minimum wage.

The US Department of Labor (DOL) and the Federal Acquisition Regulatory Council (FAR Council) have issued the Fair Pay and Safe Workplaces final rule and accompanying guidance. This "blacklisting rule" requires immediate action by federal contractors to ensure compliance - which may be required as early as October 25, 2016.

On August 25, 2016, the Federal Acquisition Regulatory (FAR) Council published in the Federal Register its highly anticipated Final Rule1 regarding the so-called "blacklisting" procedures for federal contractors President Obama ordered in his Fair Pay and Safe Workplaces Executive Order (EO) Number 13673. Accompanying the Final Rule was separate Final Guidance2 the Department of Labor (DOL) issued to help employers interpret the new Rule. The Rule becomes partially effective on October 25, 2016, with phased-in disclosure requirements, while the paycheck transparency obligations take effect on January 1, 2017.

The U.S. Labor Department has now issued its final "Guidance" concerning President Obama's July 2014 "Fair Pay and Safe Workplaces" Executive Order. Our recent Labor Alert summarizes this lengthy Guidance, which among other things obligates prospective and existing federal contractors and subcontractors to disclose "violations" of 14 federal labor laws (and related state laws) and requires federal officials to take these "violations" into account in deciding whether to award a federal contract to a particular contractor or whether to exercise a contract option.

The final rule and guidance implementing the Fair Pay and Safe Workplaces Executive Order, signed by President Barack Obama in July 2014 and finally published on August 25, 2016, remain almost as burdensome and problematic as they were when originally proposed. They will impact many federal contractors and require immediate attention to ensure full compliance, which for some will be required as soon as October 2016.

The U.S. Department of Labor and the Federal Acquisition Regulatory (“FAR”) Council have published the highly-anticipated final guidance and regulations implementing President Barack Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673), often called the “Blacklisting” or “Bad Actors” Executive Order. Signed by President Obama in July 2014

On August 24, 2016, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration (FAR Council) released the final rule implementing the “Fair Pay and Safe Workplaces” Executive Order (EO). Simultaneously, the Department of Labor (DOL) released final guidance on key provisions of the final rule. The so-called “blacklisting” EO requires prospective and existing contractors on covered contracts to disclose administrative determinations, arbitral awards, and civil judgments (referred to collectively in the rule as “labor law decisions”) finding or (sometimes even just alleging) violations of 14 enumerated labor laws and state law equivalents.

On the eve of the Fourth of July holiday, and just in time for the start of the final quarter of the Agency’s fiscal year, OFCCP announced it had received approval of its revised Scheduling Letter and Itemized Listing. The revised letter, which, when received by a contractor initiates an Agency compliance review, was initially proposed by the Agency in October 2015 and under review by the Office of Management and Budget (OMB) since April 2016

On July 1, 2016, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced that the Office of Management and Budget (OMB) renewed the Scheduling Letter and Itemized Listing for three years. As a result, as of July 1, OFCCP will begin using the renewed letter to initiate compliance evaluations of nonconstruction supply and service government contractors. The last time OFCCP had released a revised scheduling letter and itemized listing was in October of 2014. As federal contractors know, the update in 2014 increased the burden to respond to OFCCP’s compliance evaluations in several ways.

On June 15, 2016, the U.S. Office of Federal Contract Compliance Programs (“OFCCP”) published a final rule detailing the obligations of federal contractors to ensure nondiscrimination on the basis of sex, and to take affirmative action to treat all applicants and employees equally without regard to sex.1

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has announced that the 2016 Annual Section 4212 (VEVRAA) hiring benchmark for 2016 is 6.9 percent. The benchmark is based on data issued by the Bureau of Labor Statistics (BLS) on March 4, 2016 and is effective as of that release date.

Declaring that it is time to “bring these old guidelines from the 'Mad Men' era to the modern era,” the Office of Federal Contract Compliance Programs (OFCCP) just announced a final rule revising sex discrimination guidelines for federal contractors. It is the first substantive update to the rules since 1970, and will expand contractors’ obligations to ensure equal opportunity in employment based on gender. The effective date for the new rule is rapidly approaching – August 15, 2016 – so you will want to begin the process of ensuring compliance immediately.

On June 14, 2016, the Office of Federal Contract Compliance Programs (OFCCP) announced publication of its long-awaited final rule on sex discrimination. This rule, in the form of regulations, updates the OFCCP’s 1970 guidance on this topic. The final rule is focused on eliminating gender-based barriers to equal employment opportunity and covers a variety of topics, such as compensation discrimination, intentional gender discrimination, disparate impact gender discrimination, accommodations for pregnant workers, and the prohibition against sex-stereotyping, including discrimination based upon gender identity.

As anticipated, OFCCP has released its new Sex Discrimination Rules – replacing the outdated Sex Discrimination Guidelines that have been in place since the 1970s. The release coincides with the White House’s United State of Women Summit being held today in Washington D.C..

On June 14, 2016, the Office of Federal Contract Compliance Programs (OFCCP) announced that it will issue a Final Rule updating its sex discrimination guidelines. The new final regulations are applicable to federal contractors covered by Executive Order 11246 prohibiting sex discrimination in employment.

Increasingly, high-profile companies in the tech industry are feeling the pressure to publicly share employee pay information and address any existing “pay gaps.” This has led to a number of recent press releases from Silicon Valley employers proclaiming “equal pay” within their organizations.

The Department of Labor has released its Spring 2016 regulatory agenda. While the agency has accomplished many things already this year there are still a couple of items it would like to check off its list, including the following:

The Office of Federal Contract Compliance Programs (OFCCP) has published a revised directive regarding the use of Functional Affirmative Action Plans (FAAPs). A FAAP requires specific OFCCP approval and is a departure from the typical "establishment-based" AAP structure for multi-establishment facilities, using an AAP structure that is more in line with the business functions or business units of the contractor. A functional or business unit refers to a component within an organization that operates autonomously in the ordinary course of the organization's business. To be considered suitable for a FAAP, the functional or business unit must: 1) currently exist and operate autonomously; 2) include at least 50 employees; 3) have its own managing official; 4) have the ability to track and maintain its own personnel activity.

OFCCP has received approval from OMB for revisions to the Agency’s Functional Affirmative Action Program (FAAP) directive. The revised Directive 305 went into effect on April 28, 2016. In response to public comments received, OFCCP made modifications to its proposed revised directive, as reflected in the supporting statement filed with OMB.

We’ve learned the Office of Management and Budget has received for consideration the proposed regulations and guidance implementing the Fair Pay & Safe Workplaces Executive Order. This is the next step in the regulatory review process and indicates the regulations and guidance are one step closer to finalization. To be clear, the documents need OMB approval before being final.

At last, we have a little good news for government contractors. By a vote of 34–28 taken late in the evening on April 27, 2016, the House Armed Services Committee (HASC) adopted a measure that would block the application of Executive Order 13673, Fair Pay and Safe Workplaces (EO 13673) to the U.S. Department of Defense or the National Nuclear Security Administration. The measure came in the form of the Kline-Wilson Amendment to the National Defense Authorization Act for Fiscal Year 2017 (FY 2017 NDAA). The amendment would spare these two agencies from the reach of the executive order and the implementing regulations and guidance that contractors are awaiting from the Federal Acquisition Regulatory Council (FAR Council) and the U.S. Department of Labor (DOL).

The web of overlapping and incongruent paid sick leave laws in the United States just grew even more complicated. On February 24, 2016, the U.S. Department of Labor (DOL) added yet another set of paid leave obligations to the growing list of paid sick leave mandates that have been adopted by states and municipalities. This latest addition came in the form of a notice of proposed rulemaking (NPRM) to implement Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors (the proposed rule). These new requirements for paid sick leave (PSL) would apply only to employees who work “on or in connection with” certain categories of government contracts that are awarded on or after January 1, 2017. According to the DOL’s proposal, the PSL requirements would not apply to employees who do not work directly on a covered contract and spend less than 20 percent of their working hours in a particular workweek performing work “in connection with” such contracts.

Government contractors may have reason to feel uneasy at what awaits them from the Administration’s latest effort to mandate worker benefits. U.S. Department of Labor’s Notice of Proposed Rulemaking provides a glimpse into how the Department of Labor intends paid sick leave (“PSL”) to affect federal contractors’ and their employees under Executive Order 13706. (See our article, U.S. Labor Department Publishes Proposed Regulations Implementing Executive Order on Government Contractor Paid Sick Leave.) Significant burdens lie ahead, if the regulations are adopted as drafted.

In recent years, the U.S Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) has aggressively argued that healthcare providers that participate in one of three federal healthcare programs—Medicare, TRICARE, and the Federal Employee Health Benefits Program (FEHBP) —are federal subcontractors. With this goal in mind, OFCCP began to notice audits in early 2004 and engaged in protracted litigation with hospitals in Pennsylvania and Florida based on their FEHBP or TRICARE relationships. Faced with considerable opposition and hearings scheduled by the House Committee on Education and the Workforce, OFCCP issued Directive 2014-01, TRICARE Subcontractor Enforcement Activities on March 7, 2014; announced plans to close any open and scheduled compliance evaluations for TRICARE healthcare entities; and withdrew from pending litigation with the Florida and Pennsylvania hospitals. Effective immediately, the directive established a five-year moratorium on the enforcement of affirmative action obligations of healthcare entities deemed by OFCCP to be TRICARE subcontractors. The directive makes clear that those healthcare providers that participate in both TRICARE and FEHBP as subcontractors are covered by the moratorium but does not provide any guidance regarding those healthcare providers that only participate in FEHBP. The moratorium also covers any TRICARE participants that also participate in any Medicare program.

The Department of Labor (DOL) has published a proposed rule to implement President Obama's 2015 executive order requiring federal contractors to offer their employees up to seven days of paid sick leave per year.

On January 22, 2016, the Federal Acquisition Regulatory (FAR) Council issued a Proposed Rule prohibiting government contractors from using internal confidentiality agreements to restrict employees or subcontractors from making reports of fraud, waste, or abuse to federal officials.

In 2015, the Office of Federal Contract Compliance Programs (OFCCP) tackled what many believe was its most ambitious agenda since the agency’s inception. In 2016, we can expect more of the same—the Obama administration continuing to foist its most desired workplace policies on federal contractors whenever it doesn’t have the votes in Congress to pass laws that would apply more generally to U.S. employers. The following is a summary of some of the more significant OFCCP initiatives slated to take effect in 2016.

Federal contractors long have been aware of the numerous laws and regulations prohibiting pay discrimination. On January 11, 2016, new rules pertaining to pay transparency issued by the Office of Federal Contract Compliance Programs (OFCCP) took effect. The new rules seek to effectively eliminate the practice of restricting employees’ discussions wage, salary, benefits or bonus information. For federal contractors, this could mean significant changes to company policies and employee handbooks, as well as contracts and other documents.

The Supreme Court both limited and expanded the legal standards that relate to federal contractor immunity from lawsuits in a decision released last week. According to the January 20, 2016 decision in Campbell-Ewald Co. v. Gomez, a contractor’s immunity from liability for work performed under contract with the federal government is qualified, rather than absolute; however, such immunity is not limited to the context of property damage resulting from public works projects.

As we previously shared, OFCCP is hosting a second webinar on the new Pay Transparency regulations on January 28, 2016. The webinar is at capacity, but in an effort to accommodate all those who want to attend, OFCCP announced it will be live streaming the audio portion of the webinar.

OFCCP’s Pay Transparency regulations recently went into effect and with it came new information dissemination obligations for contractors with respect to job seekers. OFCCP recently held a webinar in which they discussed these obligations. In addition, the agency recently updated its website to include a section specifically addressing employer obligations surrounding posting of the Pay Transparency Non-Discrimination Provision.

On January 11, 2016, the final rule issued by the Office of Federal Contract Compliance Programs (OFCCP) amending regulations1 to implement President Obama's Executive Order 13665, the so-called "Pay Secrecy" or "Pay Transparency" order, took effect. That order, issued in April 2014, amended Executive Order 11246 to bar federal contractors and subcontractors from retaliating or discriminating against an employee or applicant for inquiring about, discussing, or disclosing his or her own compensation, or the compensation of any other employee or applicant. While the regulations apply only to federal contracts or subcontracts in excess of $10,000 that are entered into or modified on or after January 11, 2016, employers that currently are or may be federal contractors would be well served to become familiar with the regulations' requirements and begin preparing for them now. The Pay Transparency executive order and implementing rule have been touted as part of the Administration's efforts to ensure equal pay for equal work, an objective President Obama again cited during his recent State of the Union Address.

On Monday, January 11, the Office of Federal Contract Compliance Programs’ (OFCCP) final rule on pay transparency, which prohibits federal contractors from discriminating against employees and applicants “who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants,” will go into effect. OFCCP had published the rule, titled “Government Contractors, Prohibitions Against Pay Secrecy Policies and Actions,” which implements Executive Order 13665, Non-Retaliation for Disclosure of Compensation Information, in September of 2015 to curb prohibitions on employees’ discussions about pay with their coworkers. The new rule applies to companies with over $10,000 in federal contracts or subcontracts that are entered into or modified on or after January 11, 2016.

A series of executive orders signed or implemented this year imposes substantial new obligations on employers contracting or subcontracting with the federal government. These executive orders have established a minimum wage for employees of federal contractors, expanded protected classes, and set additional requirements for hiring veterans and individuals with disabilities. Additionally, regulations are expected next year on mandatory reporting of labor and employment law violations.

In a year in which OFCCP has proposed and released more new and updated regulations than any other in recent memory, it looks as though they are on track to add new Sex Discrimination Regulations to the list.

Government contractors and subcontractors have one more thing of which to be aware when it comes to accommodating disabled individuals. The Office of Federal Contract Compliance Programs (OFCCP), part of the U.S. Department of Labor, has created a new “Requesting a Reasonable Accommodation” pocket card.

On September 10, 2015, the Office of Federal Contract Compliance Programs (OFCCP) published its final rule on pay transparency. The purpose of the rule is to prohibit “pay secrecy policies” to make it “possible for workers and job applicants to share information about their pay and compensation without fear of discrimination.” This rule implements Executive Order 13665, Non-Retaliation for Disclosure of Compensation Information, which President Obama signed on April 8, 2014.

During a week in which Washington D.C. experienced a historic visit from the Pope, those in the government contractor community had a celebration of their own – the 50th Anniversary of the signing of Executive Order 11246. The celebrations kicked off on September 24, 2015 – the actual 50th anniversary – with a celebratory reception hosted by The OFCCP Institute. Numerous former OFCCP Directors joined the celebration and shared memories of their time with the Agency.

On September 10, 2015, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released a supplement to the “EEO is the Law” poster for use by covered federal government contractors and subcontractors. The poster supplement was released as part of OFCCP’s new final pay transparency rule.

On July 2, 2015, the Federal Acquisition Regulatory Council amended the jurisdictional threshold for coverage under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Currently, a contractor with a single contract valued at $100,000 or more annually meets the threshold for the requirement to have a written affirmative action program under VEVRAA. Effective October 1, 2015, the threshold will increase to a single contract valued at $150,000 or more annually. The increase in this threshold is significant because as of October 1, 2015, if a contractor only has contracts individually valued at less than $150,000 annually, that contractor will not be required to prepare a protected veterans’ affirmative action program or list its job openings with the local employment service delivery system.

On February 12, 2014 President Obama signed Executive Order 13658 establishing a minimum wage for federal contractors. Effective January 1, 2015, the minimum hourly wage for workers performing work on covered contracts was $10.10. The Executive Order gave the Secretary of Labor the authority to determine the hourly rate for subsequent years.

As reported in our September 2014 newsletter, President Obama's Fair Pay and Safe Workplaces Executive Order (the "Order") will create significant obligations for federal contractors once effective. On May 28, 2015, the Federal Acquisition Regulatory Council (the "FAR Council") issued a proposed rule, accompanied by proposed implementing guidance from the Department of Labor (the "DOL"), to implement the Order's key requirements, which include the disclosure of labor law violations for contractors performing or bidding on covered federal contracts and new paycheck transparency requirements.

Adding to its growing list of available educational tools, OFCCP has published a new “InfoGraphic” to assist veterans determine whether they are covered under the Vietnam Era Veteran Readjustment Assistance Act (VEVRAA).

As a continuation of its recent education and outreach efforts, OFCCP released a Checklist for Compliance with Section 503 of the Rehabilitation Act of 1973. The checklist was developed by the U.S Department of Labor’s Office of Disability Employment Policy (ODEP) and covers obligations under Subpart C of the revised Section 503 regulations.

Shortly after the U.S. Department of Labor and Federal Acquisition Regulatory Council extended the public comment period for pending proposals implementing Executive Order 13673, a group of Senate Republicans requested the U.S. Department of Labor withdraw its proposed guidance.

Compensation – it’s on everyone’s mind and it’s what everyone was talking about at the 33rd Annual ILG National Conference in New York City. Conference attendees, government officials and practitioners alike were all talking about pay and the tools available to employers and agencies to identify and investigate compensation issues.

As first reported in the New York Times today, the White House, in connection with the U.S. Department of Labor, is working on an executive order requiring federal contractors to provide paid sick leave to their workers. While a copy of the order was not made available, the article detailed some of the elements of the “pre-decisional and deliberative” draft, including the requirement that employers pay for up to a minimum of 56 hours a year for sick leave. As currently drafted, the required leave would not be solely for an employee’s personal illness but would cover caring for others, including domestic partners.

On August 3, 2015, the Office of Federal Contract Compliance Programs (OFCCP) announced the release of a new outreach and education poster, "Opening Doors of Opportunity for All Workers." The poster was developed based on feedback received during stakeholder listening sessions. According to the OFCCP, the new poster is designed to increase public awareness of the OFCCP, and "highlights the obligation of employers to treat workers fairly and without discrimination, including paying workers fairly." The new poster appears on the portion of the OFCCP website directed to workers rather than contractors. Notably, there is currently no requirement that federal contractors display the new poster in the workplace.

The U.S. Department of Labor announced today another extension of the public comment period for the proposed guidance and regulations implementing The Fair Pay & Safe Workplaces Executive Order 13673. The deadline for submitting comments is now August 26, 2015. This is the second extension for this public comment period.

Today, OFCCP released a new outreach and education poster. The poster, which the Agency explained was based on feedback received during “stakeholder” listening sessions, is not a mandatory posting but provided by the agency to “increase public awareness of OFCCP and its mission.” The poster highlights obligations of companies doing business with the federal government, stating these companies

Today is the official start to the 2015 Industry Liaison Group National Conference where conference attendees will focus on “lessons from our past, strategies for our future” in world of affirmative action and equal employment opportunity.

Following announcement of a two-week extension of the public comment period for proposals implementing Executive Order 13673, on July 15, 2015, a group of Congressional Chairs submitted a letter to the U.S. Department of Labor and the Federal Acquisition Regulatory Council requesting the agencies withdraw their pending proposed guidance and rule.

President Obama’s July 2014 Fair Pay and Safe Workplaces Executive Order 13673 mandates that federal contracting agencies collect information concerning a potential prime contractor’s 3-year violation history with respect to 14 federal labor, employment, wage payment, and safety laws (and the “equivalent” state laws). The executive order instructs government procurement officials to weigh each contractor’s “violations” of these laws for purposes of assessing whether the company should be permitted to bid on new federal contracts over $500,000 or continue working on existing federal projects.

In a complaint filed on June 17, 2015, OFCCP alleges that a staffing agency that supplies laborers to work for federal prime construction contractors at the prime contractors' construction sites, permitted the prime contractors' supervisors to harass the staffing agency’s Hispanic employees.

In its own words, the purpose of the Office of Federal Contract Compliance Programs (OFCCP) is to: "enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government."

On February 12, 2015, U.S. Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) underscored its intent to continue to scrutinize hospitals, including nonprofit hospitals. The OFCCP found that Lahey Clinic Hospital in Burlington, Massachusetts had discriminated against 38 female housekeepers by paying them $.70 per hour less than male housekeepers. As a result, and while denying liability, Lahey agreed to enter into a settlement agreement with the OFCCP that will pay the affected women a total of $190,000 in lost wages, interest and salary adjustments.

Executive Summary: The OFCCP's final rule implementing President Obama's Executive Order (EO 13672) prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity takes effect April 8, 2015. In light of the upcoming compliance date, contractors covered by the rule should take steps now to ensure they are prepared to comply with its requirements.

On January 28, 2015, the Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking (NPRM) to replace the current sex discrimination guidelines. This updated rule is intended to reflect legislative changes that have occurred since the guidelines were implemented in 1970, judicial rulings interpreting these laws, and current policies of OFCCP and the U.S. Equal Employment Opportunity Commission (EEOC). (More information on the proposed regulations, including a fact sheet and frequently asked questions may be found on the U.S. Department of Labor’s OFCCP website.).

On December 18, 2014, the U.S. Department of Justice (“DOJ”), through Attorney General Eric Holder, issued a memo stating it would begin to bring claims against employers on behalf of workers who claim they have been discriminated against in the workplace due to their transgender status. Title VII of the Civil Rights Act prohibits discrimination against employees due to, among other things, the employee’s sex. However, until now, the DOJ has interpreted Title VII as not covering people who do not present as the gender associated with the sex with which they were born.

Executive Order (“EO”) 11246 prohibits discrimination by covered companies doing business with the federal government on the bases of race, color, religion, sex, and national origin, and requires those companies to take affirmative steps to ensure nondiscrimination on those grounds. As briefly mentioned in last August’s eLABORate, on July 21, 2014, President Obama signed EO 13672, which amended EO 11246 by adding sexual orientation and gender identity to the prohibited bases of discrimination. On December 3, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued the final rule (“the Rule”) implementing EO 13672, which is expected to be published in the Federal Register on December 9, 2014.

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has announced that it will mail Courtesy Scheduling Announcement Letters (CSALs) to contractor facilities across the country that have been selected for compliance reviews during the next scheduling cycle.

On October 17, 2014, as part of its on-going efforts to provide guidance to federal contractors regarding recent revisions to Section 503 regulations and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”), the Office of Federal Contract Compliance Programs (“OFCCP”) posted two new Frequently Asked Questions (“FAQs”). One FAQ addresses how contractors may store self-identification disability information in compliance with the recent changes to Section 503. The other FAQ addresses the ways in which contractors may list jobs that are remote, full-time telework positions in compliance with the VEVRAA. The Section 503 and VEVRAA regulations were both revised on September 24, 2013, and the revisions went into effect on March 24, 2014.

As many federal contractors know, the Office of Federal Contract Compliance Programs (OFCCP) begins a compliance evaluation (or audit) by sending to the selected contractor a letter scheduling the audit. The listing of documents that accompanies the letter (the “itemized listing”) sets forth the information and documentation the contractor is required to produce to OFCCP within 30 days of receiving a scheduling letter. Last week—after more than three years’ wait—OFCCP released a revised scheduling letter and itemized listing, which are effective for any audit initiated on or after October 1, 2014. In the itemized listing, OFCCP (i) makes substantial changes to the content and format for reporting compensation data, (ii) expands employment activity data reporting for applicants, hires, promotions, and terminations to include individual race and ethnicity, and (iii) includes documentation of recently-effective requirements under section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). The initial submission of data to OFCCP is now even more important, and the 30-day deadline will be significantly harder to meet.

Executive Summary: On September 30, 2014, the Office of Federal Contract Compliance Programs ("OFCCP") published a Notice in the Federal Register announcing a newly approved Scheduling Letter and Itemized Listing. The Itemized Listing, used in conjunction with the Scheduling Letter, identifies the documents and information that contractors must provide at the onset of the desk audit phase of an OFCCP compliance evaluation for non-construction supply or service federal contractors.

Executive Summary: It has long been a professional faux pas to ask someone how much money they make, and some employers prohibit their employees from talking about it. Well, if you are a federal contractor or subcontractor, be prepared to set aside your professional sensibilities, because things are about to change. On April 8, 2014, President Obama issued Executive Order 13665 to address the apparent lack of transparency in employers' pay policies and practices. To address this issue, Executive Order 13665 amended Executive Order 11246 to include a provision prohibiting covered entities from discharging or discriminating against employees or applicants for inquiring about, discussing, or disclosing their compensation or the compensation of another employee or applicant. In plain terms, Executive Order 13665 would prohibit covered entities from maintaining what are sometimes referred to as "pay secrecy" policies.

On September 17, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a proposed rule to implement pay transparency requirements for Federal contractors and subcontractors. The proposed rule comes as a result of Executive Order 13665, entitled “Non-Retaliation for Disclosure of Compensation Information,” signed by President Obama on April 8, 2014.

On September 2, 2014, the Office of Federal Contract Compliance Programs (OFCCP) published in the Federal Register a proposed renewal of the current record-keeping, notice, and reporting requirements imposed by Executive Order 11246 for federal construction contractors and subcontractors. The current requirements are set to expire on December 31, 2014.

On August 6, 2014, the Office of Federal Contract Compliance Programs (OFCCP) released a Notice of Proposed Rulemaking (NPRM) requiring federal contractors and subcontractors with 100 or more employees to submit an annual Equal Pay Report. The new report will supplement the Equal Opportunity Report, EEO-1. It will also include summary information on compensation paid to employees—as contained in the Form W-2, “Wage and Tax Statement”—by sex, race, ethnicity, and specified job categories. In addition, the new report will include other data points such as hours worked, and the number of employees. OFCCP issued the proposed Equal Pay Report and Instructions, in addition to a Supporting Statement, which the agency released on August 11, 2014.

President Obama recently signed an Executive Order mandating that companies seeking federal contracts must disclose all labor law violations from the previous three years in order to be eligible for such contracts. The Fair Pay and Safe Workplaces Executive Order will govern new federal procurement contracts valued at more than $500,000 and provide information on companies’ compliance with federal labor laws for agencies. The Executive Order is expected to be implemented on new contracts in stages, on a prioritized basis, during 2016.

The stated purpose of the Office of Federal Contract Compliance Programs’ (OFCCP) August 19, 2014 Directive 2014-02 is to make clear that discrimination “based on sex” includes discrimination on the bases of gender identity and transgender status. Executive Order 13672, issued on July 21, 2014, included “sexual orientation” and “gender definition” prohibitions for new federal contracts and subcontracts entered into on or after the effective date of its implementing regulations; however, Directive 2014-02 deals only with the prohibition of gender identity as a form of sex discrimination for current contractors and subcontractors. Unlike Executive Order 13672, the directive does not address gender identity as a “stand-alone protected category” and does not mention protections for “sexual orientation.”

Executive Summary: Implementing the President's April 2014 Memorandum directing the Department of Labor to develop a data collection tool to advance the goal of pay equity, the Office of Federal Contract Compliance Programs (OFCCP) has published a Notice of Proposed Rulemaking (NPRM) requiring certain federal contractors and subcontractors to submit an annual Equal Pay Report on employee compensation. The NPRM was published in the August 8, 2014 Federal Register. More information is available on the OFCCP's website at: http://www.dol.gov/ofccp/EPR.html.

In the months since the new Section 503 and VEVRAA regulations became effective (March 24, 2014), the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has continued to aggressively – and successfully – push for more. On July 21, 2014, President Obama signed an executive order amending Executive Order 11246 by extending protections against workplace discrimination to members of the lesbian, gay, bisexual, and transgender (“LGBT”) community. In a surprise move, the executive order does not contain any exemptions for religiously affiliated federal contractors, as some had hoped. Religiously affiliated federal contractors still may favor individuals of a particular religion when making employment decisions. President Obama directed the Secretary of Labor to prepare regulations implementing the new requirements by October 19, 2014.

Today the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a Notice of Proposed Rulemaking which would require covered federal contractors and subcontractors with more than 100 employees and contracts, subcontracts, or purchase orders amounting to $50,000 or more, to submit to OFCCP summary data on the compensation paid to their employees. The proposed rule, which will be published in the Federal Register on August 8, 2014, implements a directive of a presidential memorandum issued four months ago. The deadline for submitting comments on the proposed rule will be 90 days from the date of its publication in the Federal Register. Look to Ogletree Deakins in the coming days for further analysis and recommendations regarding the rule.

As we discussed yesterday in our blog post, “President Obama Issues Two Executive Orders in 10-Day Period,” this week President Obama issued the Fair Pay and Safe Workplaces Executive Order. Under this order, federal contractors will be required to disclose labor law violations and comply with additional obligations regarding pay information that must be disclosed to workers.

A federal trial court in Texas has entered an agreed order granting a joint motion for voluntary dismissal filed by the parties in Frito-Lay v. Department of Labor. As discussed in our prior Alert, in Frito-Lay, the company challenged a decision by the Arbitration Review Board (ARB) upholding the authority of the Office of Federal Contract Compliance Programs (OFCCP) to extend the temporal scope of a desk audit beyond that of the scheduling letter. The order granting the motion for voluntary dismissal states that the administrative proceedings before the DOL and ARB are vacated with prejudice to their re-institution, "including the Final Administrative Order of the Administrative Review Board" issued on May 8, 2012, and the Recommended Decision and Order of the ALJ issued on July 23, 2010.

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has issued a Directive officially establishing its five-year moratorium on enforcement of the affirmative action obligations of TRICARE subcontractors. The Directive states that within 30 business days of the effective date of the Directive (May 7, 2014), the OFCCP will administratively close any open compliance evaluations of TRICARE subcontractors affected by the moratorium. It also provides additional information regarding the moratorium and the agency's proposed outreach efforts during that time period. Additionally, the Directive provides guidance to TRICARE subcontractors covered by the moratorium who receive an OFCCP Scheduling Letter or Corporate Scheduling Announcement Letter (CSAL).

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has announced that the Annual National Percentage of Veterans in the Civilian Labor Force for the current year is 7.2 percent. The final regulations implementing the OFCCP's revised VEVRAA Rules had indicated that this amount would be 8 percent; however, the information posted on the OFCCP's VEVRAA Benchmark Database is the current information and should be used for affirmative action plans filed after the effective date of the new regulations (March 24, 2014).

On March 28, 2014, the OFCCP withdrew its jurisdictional Complaint against Florida Hospital of Orlando after several years of litigation. OFCCP alleged it had jurisdiction to conduct an audit because the Hospital participated in the TRICARE program; the Hospital challenged the Agency's jurisdiction. Due to the withdrawn Complaint, the Department of Labor's ALJ dismissed the case on April 1.

Because of a recent court decision, federal construction contractors must comply with several new regulations that many consider burdensome. An effort to exempt construction contractors from some of the new regulations was tossed out by a federal judge. Associated Builders and Contractors, Inc. v. Patricia A. Shiu, et al.

Executive Summary: Labor Secretary Perez has announced a five-year moratorium on enforcement "of the affirmative action obligations of all TRICARE providers," and has stated that the Office of Federal Contract Compliance Programs (OFCCP) will administratively close any open and scheduled compliance evaluations for TRICARE subcontractors. Despite this announcement, however, the OFCCP continues to claim jurisdiction over certain healthcare providers that participate in TRICARE as well as the Federal Employees Health Benefits Program (FEHB).

In a letter to congressional leaders on March 11, 2014, Secretary of Labor Thomas E. Perez announced that the Office of Federal Contract Compliance Programs (OFCCP) will issue a directive establishing a five-year moratorium on enforcement of the affirmative action obligations required of all TRICARE subcontractors and will administratively close any open and scheduled compliance evaluations for TRICARE subcontractors. TRICARE is the health care program that provides benefits for active duty and retired military personnel and their families.

The Office of Federal Contract Compliance Programs (OFCCP) likely will be sending out advanced courtesy notifications (formerly known as Corporate Scheduling Announcement Letters or CSALs), to establishments that have been selected to undergo a compliance evaluation during the upcoming scheduling cycle. This letter does not schedule a compliance evaluation, but instead notifies a facility that it will probably undergo a compliance evaluation during the next scheduling cycle.

The Office of Federal Contract Compliance Programs (OFCCP) recently announced a significant monetary settlement of a complaint alleging hiring discrimination by a federal contractor. In this complaint, the agency alleged that the contractor favored Asian applicants over African-American, Hispanic, and white candidates. In order to settle the case, the contractor agreed to pay back wages to nearly 3,000 applicants and to offer 350 jobs to members of the victim class, in addition to undertaking self-monitoring of its hiring practices. None of this is particularly earth-shattering or new. However, there are two points worth noting in this case.

On January 22, 2014, the Office of Management and Budget (OMB) approved the OFCCP's disability status form, which will be used by federal contractors. Revised regulations under the Rehabilitation Act will require federal contractors to invite applicants and employees to voluntarily identify themselves as disabled; the invitation must be extended using this specific form. Employers may use this form in an electronically fillable format provided that the electronic version displays the OMB number and expiration date, contains the exact text of the OMB approved form, uses a sans-serif font, and uses at least an 11-pitch font size.

New disability regulations issued by the Office of Federal Contract Compliance Programs (OFCCP) mandate that covered federal contractors and subcontractors invite applicants and employees to self-identify their disability status. This invitation—which must be solicited pre-offer, post-offer, and at various times during employment—must follow OFCCP’s requirements, either through an OFCCP-approved form or by using an identical copy of that form . After much delay, OFCCP’s disability self-identification form has been approved by the Office of Management and Budget (OMB) and is available on the OMB website.

Executive Summary: The OFCCP has released its semiannual regulatory agenda, in which the agency discusses the issues it plans to address in 2014. According to the agenda, the OFCCP will be issuing proposed rules on pay data collection, revised sex discrimination guidelines, and updated affirmative action requirements for federal construction contractors.

As noted last week, the Office of Federal Contract Compliance Programs’ (OFCCP) Final Rules amending the affirmative action obligations for individuals with a disability and protected veterans will become effective on March 24, 2014, barring an administrative delay or legal challenge. A detailed white paper discussing the new and expanded requirements of the disability Final Rule is available here and one discussing the requirements of the veterans Final Rule is available here. Our Affirmative Action and OFCCP Compliance Practice Group members are available to answer your questions on these Final Rules and look forward to working with you as these Final Rules are implemented by OFCCP.

As all federal contractors and subcontractors know, the Office of Federal Contract Compliance Programs (OFCCP) has made investigation of compensation discrimination a priority. This emphasis aligns with the president’s pronouncements on the alleged “pay gap” between men and women. Therefore, it is interesting that the OFCCP’s recent settlement with medical products manufacturer Medtronic, Inc. and Medtronic Interventional Vascular, Inc. was not a finding of gender discrimination in compensation. Instead, the Medtronic settlement was predicated on allegations that the contractor paid Hispanic senior production associates “significantly less per year” than white senior production associates at the contractor’s facility in Danvers, Massachusetts.

Earlier today, the Office of Federal Contract Compliance Programs (OFCCP) published its revisions to the current disability and veterans regulations in the Federal Register. These controversial rules become effective 180 days after publication (on March 24, 2014) and will increase the compliance obligations for federal contractors and subcontractors.

According to its own website, the primary responsibility of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), is to: “enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government.” In furtherance of that goal, the OFCCP published, on August 27, 2013, the final rules that govern affirmative action regulations for individuals with disabilities and for protected veteran. See, Final Rule to Improve Job Opportunities for Protected Veterans and the Final Rule to Improve Job Opportunities for Individuals with Disabilities

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has announced final rules revising its Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) and Rehabilitation Act regulations. The rules will take effect 180 days after publication in the Federal Register.

The Office of Federal Contract Compliance Programs (OFCCP) finally released the new Federal Contract Compliance Manual (FCCM) today. The new FCCM has been anticipated for several months. We understand that OFCCP trained its staff on the FCCM earlier this summer. OFCCP states that the FCCM provides “the procedural framework for executing quality and timely compliance evaluations and complaint investigations.” However, it is important to note that the FCCM does not create any new legal requirements and is not binding on federal contractors or OFCCP.

The Office of Federal Contract Compliance Programs (OFCCP) is charged with enforcing the affirmative action and non-discrimination obligations of federal contractors and subcontractors. Through compliance reviews and complaint investigations, OFCCP can allege and seek remedies for discrimination in hiring, compensation, and other employment scenarios.

In another chapter in the long-running saga of Florida Hospital of Orlando and the Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor’s Administrative Review Board (ARB) recently released an en banc opinion deciding an issue concerning the agency’s jurisdiction. The ARB held, by a three-to-two vote, that Florida Hospital of Orlando is subject to OFCCP jurisdiction under the firstprong of the agency’s definition of a subcontractor. OFCCP v. Florida Hospital of Orlando, ARB No. 11-011, ALJ No. 2009-OFC-2 (ARB July 22, 2013).

After briefly posting notices of the Corporate Scheduling Announcement Letters (CSAL) on its website on July 18, the Office of Federal Contract Compliance Programs (OFCCP) has now removed the posting. As noted in our July 19 Legal Alert, the OFCCP indicated that the release of the CSAL was accidental, and it has not yet implemented its policy of posting CSAL letters online. To review a spreadsheet of the companies that were identified on the OFCCP's list, please click here. We will continue to monitor this situation for any further developments.

Executive Summary: The Office of Federal Contract Compliance Programs ("OFCCP") has jurisdiction over three hospitals that provided medical services to federal employees who were members of an HMO, according to Judge Paul L. Friedman of the United States District Court for the District of Columbia. The hospitals, located in Pittsburgh, contracted with a prime contractor, the UPMC Health Plan, which had a contract with the federal government to provide medical services to federal employees. Despite the fact that the hospitals did not have an EEO clause in their contracts, and contrary to the arguments that the hospitals raised, the court found that each of the hospitals was a subcontractor that performed services necessary to the performance of the prime contract. Accordingly, even though the hospitals never consented to be bound by OFCCP's requirements, the court found that OFCCP had jurisdiction over each of the hospitals. UMPC Braddock, et al. v. Seth D. Harris, Civil Action No. 09-1210 (PLF)(D.D.C. 3-30-13).

Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) recently issued a new round of Corporate Scheduling Announcement Letters (CSALs), which notify an establishment that it has been selected to undergo a compliance review during the next scheduling cycle. These letters are not actual audit letters but rather a courtesy notice that a compliance review will likely start in the near future. Contractors who receive such letters should take steps to ensure their affirmative action plans and adverse impact analyses are complete and ready for submission and that compensation systems are reviewed and ready to be defended.

On February 26, 2013, the Office of Federal Contract Compliance Programs (OFCCP) announced that effective February 28, 2013, it rescinded its "Voluntary Guidelines" and "Compensation Standards," which the agency adopted in 2006 to evaluate pay discrimination claims against federal contractors. As readers will recall, the 2006 standards evaluated compensation based on the similarity of jobs, meaning that jobs were evaluated based on similarity of content, skill, qualifications, and level of responsibility. These were the hallmarks of court decisions evaluating discrimination under Title VII, and which were used by the EEOC in its compliance manual on compensation discrimination. The standards also incorporated the use of multiple regression statistical analysis, a well-accepted principle of statistical analysis. In their place, OFCCP issued Policy Directive 307, which outlines the procedures OFCCP investigators now will use to review the systems and practices by which government contractors pay their workers.

The Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor agency that enforces federal contractor affirmative action requirements, has significantly expanded its investigative tactics for compensation discrimination. This will have a significant effect on federal contractors whose compensation decisions are challenged.

The Office of Federal Contract Compliance Programs (OFCCP) announced that it is rescinding its "Voluntary Guidelines" and "Compensation Standards," which the agency adopted in 2006 to evaluate pay discrimination claims against federal contractors. In their place, OFCCP has issued Policy Directive 307, which sets out the procedures OFCCP investigators will use to review the systems and practices by which government contractors pay their workers. The Directive is available on OFCCP's web site at: http://www.dol.gov/ofccp/regs/compliance/CompGuidance/index.htm.

The OFCCP recently published two notices announcing the rescission of certain agency directives that either contain outdated information or address issues that are addressed in other agency materials. The OFCCP maintains a Directive System as one means of distributing guidance to its staff members and to the public. The OFCCP has been reviewing agency directives since December 2011 to determine whether they should remain active or be rescinded.

Tune in to this weeks episode of The Proactive Employer as Leigh Nason will be a guest to talk about the costs to employers of the OFCCP's NPRM on disability. Leigh will also discuss what modifications to IT and HRIS systems would be required to collect and maintain the additional data mandated under the NPRM, the changes needed to implement the annual self-identification survey, and the implications of annually reviewing all physical and mental job qualifications, training employees, and developing written accommodation policies. To listen live Click Here.

Frito-Lay Inc. has been involved in litigation with the Office of Federal Contract Compliance Programs (OFCCP) over the agency's ability to obtain data after the date of the compliance review scheduling letter. The Company prevailed before the ALJ but on May 8, the Administrative Review Board (ARB) reversed the ALJ decision and ruled in favor of the OFCCP. On June 5, 2012, the Company filed suit against the OFCCP in Texas federal district court in light of the ARB ruling.

Section 503 of the Rehabilitation act of 1973, as amended (â€œSection 503â€), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors with contracts/subcontracts of over $10,000 for the purchase, sale, or use of personal property or non-personal services, specifically including construction services. Contractors/subcontractors that have a contract/subcontract of at least $50,000 and at least 50 employees are required to prepare and maintain an Affirmative Action Program (AAP) to document efforts to comply with Section 503.

In a move which will most certainly increase federal contractorsâ€™ compliance burden, the Office of Federal Contract Compliance Programs (OFCCP) has requested approval from the Office of Management and Budget to authorize changes to OFCCPâ€™s current Supply and Service scheduling letter and accompanying itemized listing of information to be submitted in compliance evaluations.

In a move which will most certainly increase federal contractorsâ€™ compliance burden, the Office of Federal Contract Compliance Programs (OFCCP) has requested approval from the Office of Management and Budget to authorize changes to OFCCPâ€™s current Supply and Service scheduling letter and accompanying itemized listing of information to be submitted in compliance evaluations.

In keeping with its mantra of â€œgood jobs for everyone,â€ the Office of Federal Contract Compliance Programs (OFCCP) has published a Notice of Proposed Rulemaking to revise current nondiscrimination and affirmative action obligations of federal contractors under the Vietnam Era Veteransâ€™ Readjustment Assistance Act (VEVRAA). OFCCP is a program of the Department of Labor and is charged with enforcing affirmative action obligations of federal contractors and subcontractors.

The Office of Federal Contract Compliance Programs (OFCCP) has obtained favorable rulings from the Administrative Review Board in two recent decisions adverse to healthcare providers. Under these rulings, even in the absence of a direct contractual relationship with the U.S. government or one of its agencies, a healthcare provider may be deemed to be a federal government subcontractor for purposes of compliance with the federal affirmative action lawsâ€™ requirements. Unless these rulings are reversed by district courts on appeal, health systems must be aware that when a prime contract exists between the federal government and a health plan administrator through which medical services are provided to federal employees or military personnel, hospitals providing such services are likely to be viewed as federal subcontractors, subject to OFCCP jurisdiction. This means the hospitals should make efforts to comply with the OFCCP recordkeeping, posting, affirmative action, and reporting obligations. These obligations are a substantial burden for any hospital with no prior reason to engage in these efforts.

The Office of Federal Contracts Compliance Programs (OFCCP), the branch of the U.S. Department of Labor charged with overseeing affirmative action obligations, has recently targeted the healthcare industry for increased enforcement. Healthcare providers have comfortably operated for years under the belief that receipt of funding from the government does not subject them to the affirmative action obligations imposed on federal contractors, which includes creating an affirmative action plan and maintaining various records.

"We are going to be extremely proactive and aggressive. The message is it's a new day at the Department of Labor and it's a new day at the OFCCP," Patricia A. Shiu, Director of the OFCCP, Feb. 16, 2010.

The Department of Labor's (DOL) Office of Federal Contract Compliance Programs (OFCCP) has won another major battle in its war to establish jurisdiction over hospitals and other health care providers. An administrative law judge (ALJ) decided, without a hearing, that the Florida Hospital of Orlando (FHO) is subject to federal affirmative action laws by virtue of its agreement to provide health care services to eligible TRICARE beneficiaries.

The Chair of the National Industry Liaison Group for Affirmative Action Planning recently reported that he has been notified by the Office of Federal Contract Compliance Programs (OFCCP) that the federal agency plans to issue Corporate Scheduling Announcement Letters (CSAL) in the next two months. A CSAL is a courtesy notification to a federal contractor that two or more of its establishments are on the list to undergo a compliance evaluation during the current scheduling cycle (i.e., OFCCP's fiscal year of October 1 to September 30).

Office of Federal Contract Compliance Programs (OFCCP) Director Patricia Shiu recently announced that OFCCP's Interpretive Standards for Systemic Compensation Discrimination will be rescinded. This action was taken pursuant to a July 2010 recommendation by the National Equal Pay Enforcement Task Force.

We all face uncertain economic times. As everyone knows, the federal government has passed the American Recovery & Reinvestment Act (ARRA) creating huge sources of funds to pay for various projects to "stimulate" the economy. Many companies, are now considering entering into contractual relationships with the federal government as contractors or subcontractors.

Claiming it is now "a more effective and efficient civil rights enforcement agency," the Office of Federal Contract Compliance Programs (OFCCP) recently announced that it had recovered $67.5 million for rejected applicants and employees during fiscal year 2008. Ninety-nine percent of the funds collected were in cases of "systemic discrimination" involving substantial numbers of applicants or employees subjected to allegedly discriminatory practices or policies.